Old Age and Survivor's Insurance

PURPOSE: The purpose of this interpretative ruling is to clarify
our policy on establishing good cause for missing the deadline to request
review. It is being issued to avoid the improper application of res
judicata or administrative finality when the evidence establishes that a
claimant lacked the mental capacity to understand the procedures for
requesting review.

PERTINENT HISTORY: Our rules in 20 CFR, sections 404.909(a),
404.933(b), 404.968(a), 404.982, 416.1409(a), 416.1433(b), 416.1468(a),
and 416.1482, respectively, provide that a request for reconsideration,
hearing before an administrative law judge (ALJ), review by the Appeals
Council, or review by a Federal district court must be filed within 60
days after the date of receipt by the claimant of the notice of the
determination or decision being appealed. However, the regulations also
provide that a claimant can request that the 60-day time period for filing
a request for review be extended if the claimant can show good cause for
missing the deadline. The request for an extension of time must be in
writing and must give the reasons why the request for review was not filed
timely.

When the claimant fails to timely request reconsideration, an ALJ
hearing, Appeals Council review, or review by a Federal district court,
the Appeals Council review, or review by a Federal district court, the
Agency applies the criteria in section 404.911 or section 416.1411, as
appropriate, in determining whether good cause for missing the deadline
exists.

Section 404.911(a) states:

In determining whether you have shown that you had good cause for missing
a deadline to request review we consider

(1) what circumstances kept you from making the request on time;

(2) whether our action misled you;

(3) whether you did not understand the requirements of the Act resulting
from amendments to the Act, other legislation, or court decisions.

Section 416.1411(a) sets out essentially the same language.

If the claimant establishes good cause for missing the deadline to
request review, we process the request for review in accordance with
established procedures and the prior administrative action is not final or
binding for purposes of applying the rules on either res judicata or
administrative finality.

The rules on administrative finality (20 CFR, sections 404.987, 404.988,
404.989, 416.1487, 416.1488, 416.1489) provide that a final determination
or decision cannot be reopened more than 4 years (2 years for supplemental
security income cases) from the date of the notice of the initial
determination on the claim unless one of the specified conditions in
section 404.988(c) or section 416.1488(c) applies.

Similarly, the rules in 20 CFR, sections 404.957(c)(1) and 416.1457(c)(1)
indicate that an ALJ may apply res judicata to dismiss a hearing request
in cases where a previous determination or decision on a claim, involving
the same facts and the same issues, has become final. A determination or
decision becomes final for purposes of the application of res judicata,
when the claimant fails to file a request for reconsideration, or a
hearing before an ALJ, or review by the Appeals Council, or judicial
review, whichever is appropriate, within the time periods provided by the
regulations. If the claimant establishes good cause for missing the
deadline to seek judicial review of an Appeals Council's decision or
denial of review or expedited appeals process agreement, the time period
will be extended.

POLICY INTERPRETATION: It has always been SSA policy that failure
to meet the time limits for requesting review is not automatic grounds for
dismissing the appeal and that proper consideration will be given to a
claimant who presents evidence that mental incapacity may have prevented
him or her from understanding the review process.

When a claimant presents evidence that mental incapacity prevented him or
her from timely requesting review of an adverse determination, decision,
dismissal, or review by a Federal district court, and the claimant had no
one legally responsible for prosecuting the claim (e.g., a parent of a
claimant who is a minor, legal guardian, attorney, or other legal
representative) at the time of the prior administrative action, SSA will
determine whether or not good cause exists for extending the time to
request review. If the claimant satisfies the substantive criteria, the
time limits in the reopening regulations do not apply; so that, regardless
of how much time has passed since the prior administrative action, the
claimant can establish good cause for extending the deadline to request
review of that action.

The claimant will have established mental incapacity for the purpose of
establishing good cause when the evidence establishes that he or she
lacked the mental capacity to understand the procedures for requesting
review.

In determining whether a claimant lacked the mental capacity to
understand the procedures for requesting review, the adjudicator must
consider the following factors as they existed at the time of the prior
administrative action:

-- inability to read or write;

-- lack of facility with the English language;

-- limited education;

-- any mental or physical condition which limits the claimant's ability
to do things for him/herself.

If the claimant is unrepresented and has one of the factors listed above,
the adjudicator will assist the claimant in obtaining any relevant
evidence. The decision as to what constitutes mental incapacity must be
based on all the pertinent facts in a particular case. The adjudicator
will resolve any reasonable doubt in favor of the claimant.

If the adjudicator determines good cause exists, he or she will extend
the time for requesting review and take the action which would have been
appropriate had the claimant filed a timely request for review. A finding
of good cause will result either in a determination or decision that is
subject to further administrative or judicial review of the claim, or a
dismissal (for a reason other than late filing) of the request for review,
as appropriate.

If the adjudicator determines good cause does not exist to extend the
time, the adjudicator will consider the claimant to have filed an untimely
request for review, deny the request to extend the time for filing, and
dismiss the request. The dismissal of the request for review will state
the adjudicator's rationale for not finding good cause and advise the
claimant that he or she can file a new application and use the written
request for review as a protective filing date.

EFFECTIVE DATE: The right to establish good cause for missing the
deadline to request review is a longstanding SSA policy. SSA will apply
this policy to any case brought to its attention.

EXCEPTION: In addition to this Ruling, Acquiescence Ruling AR
90-4(4), which implements the Culbertson and Young cases,
must be followed when adjudicating such cases arising in the Fourth
Circuit.